Aetna Cas. & Sur. Co. v. Holler

• Decision Date: 21 May 1976
• Citation: 52 A.D.2d 1041,384 N.Y.S.2d 575
• Parties: Application of The AETNA CASUALTY AND SURETY COMPANY, Appellants, For Judgment Staying the Arbitration Commenced by Robert H. HOLLER, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 575

384 N.Y.S.2d 575

52 A.D.2d 1041

Application of The AETNA CASUALTY AND SURETY COMPANY Appellants, For Judgment Staying the Arbitration Commenced by Robert H. HOLLER, Respondent.

Supreme Court, Appellate Division, Fourth Department.

May 21, 1976.

Nixon, Hargrave, Devans & Doyle, William D. Eggers, Rochester, for appellants.

John L. Callaghan, Edmund Clynes, Rochester, for respondent.

Before MOULE, J.P., and CARDAMONE, SIMONS, MAHONEY and DILLON, JJ.

MEMORANDUM:

This is an appeal from an order dismissing a petition seeking a permanent stay of arbitration. Respondent requested arbitration under the provisions of an uninsured motorist endorsement of an insurance policy issued by petitioner. The trial court erred in holding that it was not necessary to determine as a condition precedent to arbitration whether there was physical contact between the uninsured 'hit and run' vehicle and respondent's vehicle.

The terms of the insurance policy, as well as the applicable statutory provisions (Insurance Law, § 617), make it clear that in such cases physical contact is a precondition to arbitration. 'In hit and run cases, section 617 of the Insurance Law requires, as a condition precedent to arbitration, that the claimant establish an accident which 'arose out of physical contact . . .'' (MVAIC v. Eisenberg, 18 N.Y.2d 1, 3, 271 N.Y.S.2d 641, 642, 218 N.E.2d 524, 525). This continues to be the law (see, e.g., Matter of Smith (Great American Ins. Co.), 29 N.Y.2d 116, 324 N.Y.S.2d 15, 272 N.E.2d 528; Matter of Allstate Ins. Co. v. Watts, 45 A.D.2d 1005, 358 N.Y.S.2d 972; Matter of Allstate Ins. Co. (Morales), 42 A.D.2d 951, 348 N.Y.S.2d 148; Matter of Allstate Ins. Co. (Oberfast), 36 A.D.2d 708, 319 N.Y.S.2d 562; Matter of Garland v. Providence Washington Ins. Co., 35 A.D.2d 844, 315 N.Y.S.2d 1009).

Inasmuch as the parties focused upon the correct issue, had ample opportunity to prove their positions and do not claim that further evidence may be available, there is no need for a trial de novo (see Victor Catering Co. v. Nasca, 8 A.D.2d 5, 185 N.Y.S.2d 466). This court may make original findings (see Phelps v. State Mutual Life Assur. Co., 10 A.D.2d 60, 197 N.Y.S.2d 387; Victor Catering Co. v. Nasca, supra) or we may remit for the trial court to make appropriate findings (Buffalo Electric Co. v. State, 9 A.D.2d 372, 194 N.Y.S.2d 72, revd. other grnds., 14 N.Y.2d 453, 253 N.Y.S.2d 537, 201 N.E.2d 869). Here the determination to be made is in...